Alexander v. Kuykendall

• Decision Date: 12 March 1951
• Docket Number: No. 3752,3752
• Citation: 63 S.E.2d 746,192 Va. 8
• Parties: ESTELLE FERGUSON ALEXANDER v. WILLIAM OLIVER KUYKENDALL. Record
• Court: Virginia Supreme Court

Page 746

63 S.E.2d 746

192 Va. 8

ESTELLE FERGUSON ALEXANDER v. WILLIAM OLIVER KUYKENDALL.

Record No. 3752.

Supreme Court of Appeals of Virginia

March 12, 1951.

Louis B. Fine, for the plaintiff in error.

Breeden & Hoffman and Michael B. Wagenheim, for the defendant in error.

JUDGE: HUDGINS

HUDGINS, C.J., delivered the opinion of the court.

Estelle Ferguson Alexander instituted this action against William Oliver Kuykendall to recover damages which she alleged resulted from an invalid marriage contract which he, by false representations, induced her to enter into with him.

The defendant demurred to the motion for judgment on two grounds: (1) 'The laws of the State of Virginia do not permit or contemplate an action of the nature as stated;' and (2) even if such an action were permitted in this jurisdiction, the facts alleged are not sufficient to sustain the action. The trial court sustained the demurrer, but did not state upon which ground it based its decision.

The only question of substantive law involved is, whether or not a woman may maintain an action against a man, who, by misrepresentation, fraud and deceit, induced her to enter into what she thought was a valid marriage, but which in fact was void.

This court has never passed upon the question, and there is no Virginia statute authorizing or prohibiting such an action. However, the right of a party so defrauded to recover is authorized in most jurisdictions upon one or the other of two theories.

In the following jurisdictions it has been held that a woman who, in good faith, relying upon the false representations of a man, contracts what she believes to be a valid marriage, but which is in fact void, and thereafter lives with him until she ascertains the fraud that has been perpetrated upon her, may recover upon an implied contract the reasonable value of services rendered, less the value of support and maintenance furnished her by him. Recovery in such instances is based on the theory that the supposed husband, or his estate, has been enriched at her expense, and that equity demands she shall be made whole, -- that is, that he should reimburse her for the actual money value of the services to him. Fox's Estate, 178 Wis. 369, 190 N.W. 90, 31 A.L.R. 420; Sanders v. Ragan, 172 N.C. 612, 90 S.E. 777, L.R.A. 1917B, 681; Sanguinetti v. Sanguinetti, 9 Cal. (2d) 95, 69 P. (2d) 845, 111 A.L.R. 342; Whitney v. Whitney, 194 Okla. 361, 151 P. (2d) 583; 35 Am. Jur. Marriage, sec. 246, p. 345.

The reasoning in these cases appears to us to be unsound. As was said in Cooper v. Cooper, 147 Mass. 370, 372, 17 N.E. 892, 'the fact that the plaintiff was led by mistake or deceit into assuming the relation of a wife has no tendency to show that she did not act in that relation; and the fact that she believed herself to be a wife excludes the inference that the society and assistance of a wife which she gave to her supposed husband were for hire. It shows that her intention in keeping his house was to act as a wife and mistress of a family, and not as a hired servant. There was clearly no obligation to pay wages arising from contract; and the plaintiff's case is rested on the ground that there was an obligation or duty imposed by law, from which the law raises a promise to pay money, upon which the action can be sustained. * * * Labor in housekeeping was a small incident to a great wrong, and the intestate owed no duty, and had no right to single that out and offer payment for it alone; and the offer to do so might well have been deemed an aggravation of the injury to the plaintiff. * * * The obligation to make recompense for the injury done by the tort was imposed by law, and could be enforced only in an action of tort; it was not a debt or duty upon which the law raised a promise which would support an action of contract.'

The authorities which allow a recovery on the theory of implied contract seem to us to place the marriage relation on too much of a commercial basis, and to treat the marital relation as any other business association, whereby each expects to obtain material advantage from the marriage. This is not, in our opinion, the true concept of the relation.

Marriage, as defined by Mr. Justice Story, in his Conflict of Laws, sec. 108, is 'more than a mere contract. It is rather to be deemed an institution of society founded upon the consent and contract of the parties, and in this view it has more peculiarities in its natural character, operation, and extent of obligation different from what belongs to ordinary contracts.' 'Unlike other contracts, it is one instituted by God himself, and has its foundation in the law of nature. It is the parent, not the child, of civil society.' 1 Fras.Dom.Rel. 87.

It is seldom that parties in their pre-marital negotiations conduct themselves in the same manner as parties negotiating a business deal. As Dickens says 'The confiding eye of affection is not the distrustful eye of business.' Not business or money, but wedlock is what the parties contemplate. They are, or should be, motivated by love and affection to form a mutual and voluntary compact to live together as husband and wife, until separated by death, for the purpose of mutual happiness, establishing a family, the continuance of the race, the propagation of children, and the general good of society.

While no particular form of marriage ceremony is required by civil law, there is a form prescribed by certain denominations, the substance of which is used by a majority of ministers authorized by statute to perform marriage ceremonies. It is stated in this form that marriage is commended of St. Paul to be honorable among all men; and therefore is not by any to be entered into unadvisedly or lightly; but reverently, discreetly, advisedly, soberly, and in the fear of God, and if either of the contracting parties know of any impediment 'why ye may not be lawfully joined together in Matrimony, ye do now confess it. For be ye well assured, that if any persons are joined together otherwise than as God's Word doth allow, their marriage is not lawful.'

The great body of organized society so regards the marital relation. If third parties illegally invade certain marital rights, damages may be recovered therefor in an action based on criminal conversation. If such parties alienate the affections of one spouse from another the injured spouse may recover compensation therefor. If one innocent party is induced by fraud and deceit of the other party to contract a void marriage, such party has suffered a real and serious injury. A woman so induced has changed her status from that of a virtuous single woman and has been forced to live meretriciously with defendant, to her humiliation, disgrace and mental anguish. Such an injury cannot be fully compensated in dollars and cents. To deny recovery to a party so wronged and to permit a recovery for criminal conversation, or alienation of affections, is illogical and unreasonable.

We are in accord with the cases cited below which follow this line of reasoning and hold that an innocent woman induced by fraud and deceit to contract a void marriage with defendant, and subsequently lives with him, performing the normal duties of a wife, is entitled to recover damages in an action for fraud and deceit. Jekshewitz v. Groswald, 265 Mass. 413, 164 N.E. 609, 62 A.L.R. 525; Morrill v. Palmer, 68 Vt. 1, 33 A. 829, 33 L.R.A. 411; 2 Schouler on Marriage, Divorce, Separation and Domestic Relations, 6th Ed., sec. 1146, p. 1406; Amsterdam v. Amsterdam, 56 N.Y.S. (2d) 19; Cohen v. Kahn, 263 App.Div. 728, 30 N.Y.S. (2d) 875; Leventhal v. Liberman, 262 N.Y. 209, 186 N.E. 675, 88 A.L.R. 782 (In this case the defrauded wife was...